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Carlos Herco v. Southeastern Pennsylvania Transportation Authority

January 25, 2011


The opinion of the court was delivered by: Bartle, C.J.


Plaintiff Carlos Herco ("Herco") brings this action against his former employer the Southeastern Pennsylvania Transportation Authority ("SEPTA") for violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. 2601 et seq. Before the court is the motion of SEPTA for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.


Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). After reviewing the evidence, the court makes all reasonable inferences from the evidence in the light most favorable to the non-movant. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).


The following facts are undisputed or viewed in the light most favorable to Herco, the non-moving party. Herco has worked for SEPTA since approximately 1994, first as a custodian and most recently as a mechanic. In August 2008, Herco's mother Gregoria Herco was diagnosed with polymyalgia rheumatica, an inflammatory condition of the muscles. This condition causes pain and stiffness that leave Mrs. Herco unable to walk and perform daily life activities.

In February 2009, Herco informed his supervisor of the need to take FMLA leave to care for his mother. Herco was referred to AmeriHealth Casualty, SEPTA's third-party administrator for FMLA claims. At the request of SEPTA, Herco obtained certification from his mother's health care provider, Dr. Nancy Beggs. Beggs certified that Mrs. Herco's condition would cause "episodic flare-ups periodically preventing the patient from participation in normal daily activities" for an "indefinite" period. Beggs also estimated that these flare-ups would occur one time a month. However, Beggs failed to complete the section of the certification form regarding the duration of these flare-ups.

After submitting this certification and other paperwork, Herco's request for intermittent FMLA leave was approved. However, AmeriHealth designated that Herco's leave should not exceed one day per month. On March 13, 2009, Herco received a letter from AmeriHealth containing a notice of eligibility and his rights and responsibilities under the FMLA. He also received an FMLA designation notice. This notice stated in bold that "[y]our FMLA leave request is approved. All leave taken for this reason will be designated as FMLA leave." Below, the notice provided that "[a]bsences should not exceed 1 day per month."

Unfortunately, Herco did not read the entire notice and therefore did not realize that he had been approved for only one day of leave per month. On March 30, 2009, Herco called AmeriHealth and requested leave for April 1, 2009 through April 26, 2009. Based on his conversation with the Amerihealth representative, Herco believed this entire request for leave had been approved. Herco contends that he informed his supervisor that he would be taking FMLA leave until April 26, 2009 and that his supervisor informed him that this request was approved. According to SEPTA, Herco's supervisor informed him that he was only approved for one day of leave and that he needed to contact Amerihealth regarding any request for additional time.

Herco then placed a hold on his mail and went to live with his mother in New Jersey. When he returned home, he found a letter from SEPTA dated April 6, 2009, which informed him that he had been terminated pursuant to his collective bargaining agreement for an unexcused failure to report to work for more than three days. Herco challenged his dismissal pursuant to his union grievance policy. After these attempts at reinstatement failed, Herco filed this complaint.


Under the FMLA, an employee is entitled to leave in order to care for a parent with a serious health condition. 29 U.S.C. § 2612(c); 29 C.F.R. § 825.201. Leave may be taken on a continuous or intermittent basis for up to twelve weeks during any twelve month period. 29 U.S.C. § 2612(a); 29 C.F.R. § 825.200(a). "Intermittent leave ... may include leave of periods from an hour or more to several weeks." 29 C.F.R. § 825.202.

If leave is foreseeable, an employee is required to give his employer 30 days advance notice or, if this amount of notice is impossible, then notice is required "as soon as practicable." 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302. If leave is unforeseeable, an employee must notify its employer pursuant to the employer's "usual and customary notice and procedural requirements" and within ...

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